Does the three (3) year statute of limitations under § 15-1-49 apply to all IIED claims?

By:  Jason E. Dare

In its recent decision Geico Cas. Co. v. Stapleton, No. 2019-IA-00478-SCT, 2021 WL 1421668 (Miss. Apr. 15, 2021), the Mississippi Supreme Court overruled Jones v. Fluor Daniel Servs. Corp., 32 So. 3d 417 (Miss. 2010) and held that the three (3) year statute of limitations under § 15-1-49 applies to claims for “intentional infliction of emotional distress [“IIED”] and abuse of process.” Stapleton, 2021 WL 1421668, at *3 (¶ 12). Moreover, the Stapleton Court clarified that the one-year statute of limitations pursuant to § 15-1-35 applies only to those “actions” that “fall within the specific subjects expressed [therein]” (2021 WL 1421668, at *3 (¶ 14)) – i.e., “for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels….” Miss. Code Ann. § 15-1-35.

The question left unresolved by Stapleton is whether the three (3) year statute of limitations under § 15-1-49 applies to all IIED claims.

The elements of an IIED claim are “(1) the defendant acted willfully or wantonly toward the plaintiff by committing certain described actions; (2) the defendant's acts are ones that evoke outrage or revulsion in civilized society; (3) the acts were directed at, or intended to cause harm to, the plaintiff; (4) the plaintiff suffered severe emotional distress as a direct result of the acts of the defendant; and (5) such resulting emotional distress was foreseeable from the intentional acts of the defendant.” Jones v. City of Hattiesburg, 228 So. 3d 816, 819 (¶ 8) (Miss. App. 2017) (citations omitted). “The standard for an [IIED] claim is whether the defendant’s behavior is malicious, intentional, willful, wanton, grossly careless, indifferent, or reckless. Id. (citations omitted).

An IIED claim is predicated on an underlying action by an alleged tortfeasor. See Funderburk v. Johnson, 935 So. 2d 1084, 1099 (¶ 40) (Miss. App. 2006) (IIED claim “focuses on the defendant’s conduct rather than on the plaintiff’s emotional condition.”) Where a plaintiff’s IIED claim is premised on the same facts supporting another tort claim and the other tort claim is barred, then the IIED claim is also barred. See Miller v. Target Corp., No. 20-20415, 2021 WL 1307929, at *2 (5th Cir. Apr. 7, 2021) (Applying Texas law).

Since an IIED claim is predicated on an underlying action by an alleged tortfeasor, the underlying action should dictate the applicable statute of limitations. For example, if a plaintiff’s IIED claim is against an employee of a governmental entity or political subdivision as defined by the Mississippi Tort Claims Act (“MTCA”) and is not based on malicious conduct, then the claim would be subject to the protections, limitations, and immunities of the MTCA and the one (1) year statute of limitations under § 11-46-11 would apply. See e.g., Weible v. Univ. of S. Miss., 89 So. 3d 51, 64 (¶ 40) (Miss. App. 2011) (citations omitted); Burnett v. Hinds County by & Through Bd. of Supervisors, No. 2018-CA-00547-SCT, 2020 WL 5834485, at *4 (¶ 16) (Miss. Oct. 1, 2020). Even in non-MTCA cases, where “[t]he conduct alleged - though framed in negligence - is notably like the intentional torts of assault and battery,” then the one (1) year statute of limitations under § 15-1-35 applies. Sanderson Farms, Inc. v. McCullough, 212 So. 3d 69, 75 (¶ 14) (Miss. 2017).

The underlying action alleged in Stapleton was for GEICO “abusing the judicial process after [it] obtained a default judgment against [Stapleton] that was later set aside.” Stapleton, 2021 WL 1421668, at *1 (¶ 1). Even though malicious abuse of process in a civil setting is an intentional tort (see Cent. Healthcare Servs., P.A. v. Citizens Bank of Philadelphia, 12 So. 3d 1159, 1167 (¶ 21) (Miss. App. 2009) (quoting Ayles v. Allen, 907 So. 2d 300, 303 (¶ 10) (Miss. 2005))), it is not akin to “malicious arrest” in a criminal setting and, thus, not squarely within the actions contained in § 15-1-35. Accordingly, Stapleton should not be read to apply § 15-1-49’s three (3) year statute of limitations to all IIED claims, but instead should have limited application to those IIED claims with underlying actions outside those listed by § 15-1-35. This limited application is consistent with Stapleton, with the Court holding that it “cannot continue following Jones, which to its logical extension allows interpretation of Section 15-1-35 to include an abuse-of-power action ‘with nothing more than an oblique reference, unaccompanied by explanation.’” Stapleton, 2021 WL 1421668, at *3 (¶ 10) (quoting Jones, 32 So. 3d at 423 (¶ 24)). The underlying actions alleged in Jones are likewise not listed under § 15-1-35. See 32 So. 3d at 418-19.

Mississippi appellate courts have held that IIED claims premised on underlying actions amounting to assault, battery, false arrest, false imprisonment, and slander are subject to § 15-1-35’s one (1) year statute of limitations. See Burnett, 2020 WL 5834485, at *4 (¶ 16) (assault, battery, false arrest, and slander); McCullough, 212 So. 3d 69, 75 (¶ 14) (assault / battery); Sharkey v. Barber, 188 So. 3d 1245, 1247-48 (¶ 13) (Miss. App. 2016) (assault / battery); Southern v. Mississippi State Hosp., 853 So. 2d 1212, 1213-14 (Miss. 2003) (false imprisonment). Whether these decisions remain good law and Stapleton should have limited applicability will be the subject of many motions until the issue is further clarified.